Hayles v. State

• Decision Date: 27 March 1974
• Docket Number: No. 47566,47566
• Citation: 507 S.W.2d 213
• Parties: Kenneth HAYLES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 213

507 S.W.2d 213

Kenneth HAYLES, Appellant, v. The STATE of Texas, Appellee.

No. 47566.

Court of Criminal Appeals of Texas.

March 27, 1974.

Rehearing Denied April 10, 1974.

Rick Rogers, Corpus Christi, for appellant.

William B. Mobley, Jr., Dist. Atty., John M. Potter, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The conviction is for the offense of robbery with firearms; punishment was assessed at 30 years' confinement. Five grounds of error are raised on appeal; the sufficiency of the evidence is not challenged.

Appellant initially contends that the trial court erred in failing to comply with the mandatory provisions of Art. 26. 04, Vernon's Ann.C.C.P., in that there was no waiver of the 10-day period allowable for trial preparation. The record reflects that the appellant was originally indicted, on April 27, 1972, for exhibiting a Shotgun during the course of the robbery. A pauper's oath was filed and an attorney was appointed on July 21, 1972, to represent the appellant. The original indictment was dismissed, and on September 1, 1972, a new indictment was presented, the only change from the original one being that the latter indictment charged that the appellant used a Pistol during the course of the robbery. On September 6, the case went to trial, with appellant represented by the same attorney who was appointed on July 21, 1972.

The record reflects that all defense motions and papers filed under the old indictment were asked to be accepted under this indictment; the State offered no objections to this and the court accepted the tender. Appellant's attorney had filed many motions prior to the first indictment being dismissed; these were all included in the court's acceptance of the prior filings. As to the issue of lack of time for trial preparation under the new indictment, defense counsel, at one point, informed the court:

'If it please the Court, the Defendant Kenneth Hayles will withdraw that portion of the motion for continuance in which he alleges that he has not had ten days in which to present motions under the new indictment. . . .'

On appeal, appellant does not specifically argue that he did not have enough time to prepare for trial, only that the 'spirit and intent' of Article 26.04 have been violated here. We cannot agree.

It is clear from the record that the appointed counsel for appellant had done a significant amount of work in preparation for the trial long before the original indictment was dismissed and the second indictment presented. The only change in the two indictments was the type of weapon allegedly exhibited during the robbery. Appellant's defense was one of alibi--he alleged that at the time of the robbery he was en route from Tennessee to Mississippi. We fail to discern how appellant's trial preparation would be affected by such a change. The situation is not unlike those faced by this Court where it was held not to be reversible error where defense counsel, though as a practical matter, had been appointed on a case for more than ten days prior to trial, but was not entered of record as court-appointed counsel until some time less than ten days prior to trial. Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972). This Court has construed Art. 26.04, supra, so as to insure the accused's right to go to court with his attorney adequately prepared. ¹ We reassert that the provisions of this statute are mandatory. In the present case, however, the attorney had more than the ten days required by law in which to prepare the defense for the appellant, and the minor change in the indictment does not alter that fact. At the same time, we would admonish trial judges to avoid this situation. While we are able to conclude that In this case, in light of the appellant's defense, the facts presented to not warrant reversal, we do not intend to invite dismissals of indictments and re-in-dictments, and then not allowing counsel the ten days in which to prepare for trial. That predicament can be easily avoided. The appellant's first ground of error is overruled.

Appellant next alleges that the trial court erred in admitting the fruits of an illegal search, in that the wife of the appellant gave consent for the search of a vehicle, which consent was ineffective since the car had been loaned to the appellant only and not to his wife also. Though the appellant contends the search was illegal, he does not argue that any evidence was recovered as a result of that search, nor that such evidence, if any, was introduced against him at the trial. Nevertheless, the State's brief points out that the search of the vehicle revealed a laundry sack, a 'hot-wire' apparatus, a police radio, a windbreaker, and a certain letter addressed to the appellant. For the basis of appellant's contention, we assume that he is complaining of the admission of these specified items.

Still, we do not reach the merits of such an argument in this case. The record reflects that appellant took the stand and admitted before the jury his possession of all the items in question which were recovered from the automobile, except for a laundry bag, which the appellant stated was in the car when he borrowed it. Having testified to substantially the same facts as the State had shown, the appellant is in no position to complain. Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1971); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973), on State's motion for rehearing. We note also that a police officer...